Md. Nayan Miah and others Vs. Abdul Alam and others, 2016(1) LNJ 86

Case No: Civil Revision No. 988 of 2002

Judge: Md. Abu Tariq,

Court: High Court Division,,

Advocate: Mr. Md. Nurul Amin,Mr. H.R. Nandi ,,

Citation: 2016(1) LNJ 86

Case Year: 2016

Appellant: Md. Nayan Miah and others

Respondent: Abdul Alam and others

Delivery Date: 2013-04-15

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Abu Tariq, J.

Judgment on
15.04.2013
 
Md. Nayan Miah and others
. . .Petitioners
-Versus-
Abdul Alam being dead his heirs and others
...Opposite-parties
 
Code of Civil Procedure (V of 1908)
Section 151, Order VII, Rule 11
True a plaint may be rejected under Order 7 Rule 11 of the Code of Civil Procedure merely on reading the plaint but the Court should invoke its inherent jurisdiction and cannot throw out the plaint in limini. The plea of implied bar should be decided on evidence unless the fact disclosed in the plaint clearly indicate that the suit is not maintainable. In exceptional cases recourse may be taken even under Section 151 of the Code. In an application for rejection of plaint on the ground of undisclosed cause of action the Court should not discard the plaintiff’s case. . . .(16)
 
Code of Civil Procedure (V of 1908)
Order VII, Rule 11
The powers conferred by rule 11 of Order 7 of the Code of Civil Procedure should be exercised when the case is beyond doubt e.g. where the Court is satisfied that the plaint does not disclose a cause of action, or that the proceedings are frivolous or vexatious. The Rule 11 ought not to be applied to suits involving investigation/adjudication of complicated points of law or question of general importance. The power to reject plaint should be exercised only if the Court comes to the conclusion that even if the allegation set out in the plaint are proved, the plaintiff would not be entitled to any relief. . . .(17)
 
Code of Civil Procedure (V of 1908)
Order VII, Rule 1
Every allegation made in the plaint are to be adjudged and Court must apply its mind to cause of plaintiff as set out in the body of the plaint. . . . (18)
 
Code of Civil Procedure (V of 1908)
Section 115(1)
A Court of revision under Section 115(1) of the Code of Civil Procedure can interfere with the findings of fact, of the final Court of facts, only in exceptional cases, when the findings are shockingly perverse and those are vitiated by non-reading and misreading of the material evidence or misconstruction of any important document affecting the merit of the suit. . . . (19)
 
Code of Civil Procedure (V of 1908)
Order XXII, Rule 4(4)
The heirs of the petitioner No. 2 had already been substituted in accordance with law and the Rule was issued against the opposite party Nos. 1 to 12 and as such the heirs of other opposite parties are not required to be substituted and as such the application is misconceived. . . . (21)
 
Mr. Md. Abul Kashem, Advocate
. . . . For the petitioners.
Mr. Md. Nurul Amin, Advocate and
Mr. H. R. Nandi, Advocate
. . . For the opposite-parties

Civil Revision No. 988 of 2002
 
JUDGMENT
Md. Abu Tariq, J:
 
         On an application under Section 115(1) of the Code of Civil Procedure, 1908, the plaintiff-appellant-petitioners challenged the judgment and order dated 04.11.2001 passed by the learned Joint District Judge, Tangail in Other Class Appeal No. 32 of 1993, affirming the judgment and order dated 24.09.1993, passed by the learned Senior Assistant Judge, Mirzapur, Tangail, in Other Class Suit No. 50 of 1991 rejecting the plaint.
 
         For disposal of the Rule short facts are that the petitioners as plaintiffs instituted Other Class Suit No. 50 of 1991 in the Court of the Senior Assistant Judge, Mirzapur, Tangail for a decree of declaration that judgment and decree dated 24.1.1981 passed in Partition Suit No. 331 of 1979 being illegal, collusive and fraudulent are not binding on them.
 
         The averment in the plaint was that the suit land was owned and possessed by Amejuddin who died leaving two sons Ahsanullah and Amanullah. Thereafter, Ahsanullah died without leaving any heirs. The entire properties were devolved to Amanullah, who died leaving behind his wife, sons Azmat Ali and Mamud Ali and one daughter Tufatan Nessa. By this time, Tufauan Nessa died leaving behind her husband Muslem Uddin, two sons Ali Ahmed and Mohammad Ali and two  daughters Ayna and Majfal. The defendant Nos. 1-6 are the heirs of Azmat Ali and defendant Nos. 7-9 are the heirs of Mamud Ali who gave .07 decimals of land to Md. Anwar and Mantu who sold the said land to the plaintiff No. 1 and handed over possession to him. This plaintiff, by constructing pucca building thereon have been possessing the land by residing and carrying on business. The defendant No. 1, demanded his shaham and  possession of the said land on 28.4.1991 from the plaintiff No. 1. At this on searching in the Court he came to know that on 13.5.1991 the defendants obtained a collusive decree on 23.7.1981 in Partition Suit No. 331 of 1979. Thereafter, the plaintiff petitioners Nos. 1-2 filed  the instant Other Class Suit No. 50 of 1991 for declaring the said decree dated 23.7.1981 in partition Suit No. 331 of 1979 as not binding on them and hence the Case.
 
            The defendant Nos. 1-6 appeared in the suit and submitted written statements by denying the Case of the plaintiffs alleging, inter alia, that the suit was not maintainable in its form and manner, bad for defect of parties and barred by limitation. The plaintiffs were aware of the decree from the beginning. A deed was registered during the pendency of the suit on. 15.7.1981.
 
         The specific case of the contesting defendants is that they instituted partition suit No. 114 of 1978 in the Court of Subordinate Judge, Tangail and the said suit was transferred in the Court of Munsif, 3rd Court, Tangail as partition Suit No. 331 of 1979 which was decreed preliminary on 24.1.1981 and finally on 23.7.1981. The defendant No. 10 Anisur Rahman filed Other Class Suit No. 38 of 1981 for setting aside the impugned  decree and the said suit on transfer in the Court of Upazilla Court, Mirzapur was numbered as Other Class Suit No. 317 of 1983 and the same was dismissed on 5.8.1984 against which Other Class Appeal No. 155 of 1984 was dismissed on 20.7.1986. Against the said judgment, dismissing Other Class Appeal No. 1551 of 1984, Anisur Rahman preferred Civil Revision No. 782 of 1986 in the High Court Division which being summarily dismissed, a Civil Petition for Leave to Appeal No. 334 of 1986 was unsuccessfully moved before the Appellate Division and by suppressing all those fact the instant suit has been filed and as such the same is liable to be dismissed with costs.
 
         While the position was such, after filing written statement, the defendant opposite party Nos. 1-6 filed an application for rejecting the plaint of the suit under Order 7 Rule 11 of the Code of Civil Procedure. It was stated in the application that the plaintiffs and their vendors were aware of the Partition Suit No. 331 of 1979 and decree dated 23.7.1981 against which they contested the matter up to the Superior Courts like the High Court Division and the Appellate Division of the Honourable Supreme Court of Bangladesh. But they by suppressing those fact have filed the instant suit for setting aside the decree passed in Partition Suit No. 331 of 1979. Their said suit being barred by limitation and principle and Res-judicata the plaint thereof is liable to be rejected.
 
         In view of the facts and circumstances of the case  the learned Assistant Judge of the Trial Court rejected the plaint of the Other Class Suit No. 50 of 1991 vide judgment and order dated 24.09.1993. Against which these plaintiff petitioners preferred Other Class Appeal No. 32 of 1993 before the District Judge, Tangail and the said Appeal was  ultimately heard by the learned Joint District Judge, Tangail, who by the impugned judgment and decree dated 4.11.2001 dismissed the said Other Class Appeal.
 
         As against the said judgment and decree as passed by the learned Court of appeal below, the petitioners filed this instant civil revision and obtained the Rule.
 
         Pursuant to the service of the Rule, the learned Advocate Mr. H. R. Nandi entered appearance on behalf of the opposite-parties while the learned Advocate Mr. Abul Qashem appearing on behalf of the petitioners. The opposite parties filed no counter affidavit in this Rule.
 
         The learned Advocate Mr.  Abul Qashem for the petitioners, submits that there being a prima facie case and no issue having been framed and no evidence having been taken in Other Class Suit No. 50 of 1991, after filing the written statements, for determination of question raised in the suit, the order of rejection of the plaint is illegal and erroneous. The plaintiffs having filed their suit by disclosing specific cause of action by paying proper court fee on correct valuation by writing the plaint on sufficient stamp paper, their suit not being barred by limitation in any way and the suit not appearing from its statement to be barred by any law, the learned Judge of the Appellate Court has committed error of law in failing to hold and decide that the learned Assistant Judge of the trial Court had committed error of law resulting in an error in decision occasioning failure of justice by rejecting plaint of Other Class suit No. 50 of 1991.
 
         He next submits that fraud and malice in prosecution in   Partition Suit No. 331 of 1979 and decree therein having been alleged in the impugned Other Class Suit No. 50 of 1991, which being matter of scrutiny and evidence in Trial, rejection of plaint before framing issue for trial is illegal, improper and liable to be set aside. The plaintiffs not being parties in Partition Suit No. 331 of 1974, but their legally purchased land having been included in the decree of the said suit and they having challenged the validity of the said decree by praying for declaring the same is not binding on them in their instant suit, which having been registered being in proper form and manner, the Courts below has committed error of law resulting in an error in decision occasioning failure of justice by not holding and finding that the plaint of their Other Class Suit No. 50 of 1991 cannot be rejected  after having the pleadings of both parties before taking evidence in Trial. He prayed for making the Rule absolute.
 
         The learned Advocate Mr. Md. Nurul Amin appearing with the learned Advocate Mr. H. R. Nandi for the opposite parties submits that that the suit was not maintainable in its form and manner, bad for defect of parties and barred by  law of limitation. The plaintiffs were aware of the decree from the beginning, the deed was registered during the pendency of the suit. The specific Case of the contending defendants  opposite parties is that they instituted partition suit No. 114 of 1978 in the Court of Subordinate Judge, Tangail and the said (Suit No. 331 of 1979) was decreed preliminary on 24.1.1981 and finally on 23.7.1981. The defendant No. 10 Anisur Rahman filed Other Class Suit No. 38 of 1981 for setting aside the said decree and the said suit (Other Class Suit No. 317 of 1983) was dismissed on 5.8.1984. Against which Other Class Appeal No. 155 of 1984 was dismissed on 20.7.1986. Again the said judgment dismissing Other Class & Appeal No. 1551 of 1984, Anisur Rahman preferred Civil Revision No. 782 of 1986 in the High Court Division which being summarily dismissed, Civil Petition for Leave to Appeal No. 334 of 1986 was unsuccessfully moved before the Appellate Division and by suppressing this fact the instant suit has been filed and as such the same is liable to be dismissed. He prayed for discharging the Rule and to affirm the impugned judgment.
I have heard the learned Advocate of both the parties, perused the judgment of both the Courts below and other materials on record. Perused the application for abatement  and counter affidavit therein.
 
         The impugned suit is for scrutiny of a decree passed in partition Suit No. 331 of 1979, the opposite parties categorically admitted that defendants Nos. 9 and 10 as heir  has their property in the suit land which also needs adjudication on admission. This matter also traveled upto the Appellate Division of the Supreme Court and the trial Court  and the appellate Courts below had the duty to look into all these facts, disputes, averment and disposed of the suit on merit not in a summary manner based on a technical point  ousting the plaintiffs to establish the civil right and title.
 
         It appears that the points discussed by the trial Court in  disposing of the application  (after the written statement  filed by the defendant) under order 7 rule 11 of the Code of Civil Procedure are such those needs to be proved after looking into facts from filing the suit to a matter disposed of upto the Appellate Division of the Supreme Court, which is apparent from the materials on record. Even the trial Court itself found that amendment of plaint of the instant suit is required. So suit ought to be disposed of on merit, lis-pendency point was  also to be seen, as alleged.
 
         True a plaint may be rejected under Order 7 Rule 11 of the Code of Civil Procedure merely on reading a plaint but the Court should invoke its inherent jurisdiction and cannot throw out the plaint out in limini. The plea of implied bar should be decided on evidence unless the fact disclosed in the plaint clearly indicate that the suit is not maintainable. In exceptional cases recourse may be taken even under Section 151 of the Code. In an application for rejection of plaint on the ground of undisclosed cause of action the Court should not discard the plaintiff’s case. In this case written statement has already been filed alleging and or disputing several facts and the suit   ought to be decided after framing issues as such.
 
         The powers conferred by rule 11 of order 7 Code of Civil Procedure should be exercised when the case is beyond doubt e.g. where the Court is satisfied that the plaint does not disclose a cause of action, or that the proceedings are frivolous or vexatious. The Rule 11 ought not to be applied to suits involving investigation/adjudication of complicated points of law or question of general importance. The power to reject plaint should be exercised only if he Court comes to the conclusion that even if the allegation set out in the plaint are proved, the plaintiff would not entitled to any relief.
 
         In the present suit from the materials on record and the plaint and the written statement it appears that there are many facts mentioned in the plaint and written statements  and other materials which required to be adjudicated and the proper and appropriate course is to let the suit proceed to determine the issue as per plaint, written statement. The fact/plaint discloses, that there may be controversy of facts or an interpretation of law on which two views may he canvassed and as such rejection of plaint is not legal. Thus this Court is of the view that the Courts below failed to consider that it should determine a cause of action in considering the question of cause of action, record of suit which was challenged in the suit, applying its mind to the  impugned suit and its decree and averments in the plaint,  written statement (as in this case) and materials presuming that every allegation made in the plaint are to be adjudged  and Court must apply its mind to cause of plaintiff as set out in the body of the plaint.
 
         In view of above facts, circumstance and legal position I am of the view that the rejection of the impugned plaint under order 7 rule 11 of Code of Civil Procedure was clearly misconceived and contrary to the law and decisions. The scope of Section 115(1) of the Code of Civil Procedure is now well settled, that a Court of revision under Section 115(1) of the Code of Civil Procedure can interfere with the findings of fact, of the final Court of facts, only in exceptional cases, when the findings are shockingly perverse and those are vitiated by non-reading and misreading of the materials evidence or misconstruction of any important document affecting the merit of the suit.
 
         In this case both the Court below committed illegality in passing the judgment and decree under Order 7 Rule 11 of the Code of Civil Procedure which is laible to be interfered with by this Court.
 
         The learned Advocate Mr. Md. Nurul Amin after part heard of the matter, by filing an application, prayed that the rule is abated, as the petitioner No. 2, the opposite party Nos. 19 21, 22, 23, 29, 33, 34, 41 and 47 died  long before. In which the petitioner filed counter affidavit stating that the application is misconceived and statements are not correct. The heirs of the petitioner No. 2 had already been substituted in accordance with law and the rule was issued only against opposite party Nos. 1-12 and as such the substitution of heirs of opposite parties the petitioner No. 2 and those are not required to be substituted and thus this application is misconceived and redundant and filed just to delay the matter. 
 
         On perusal of application, counter affidavit to it I am of the view that the application is redundant and is with wrong statements. In such circumstances this application is summarily rejected.
 
In the result the Rule is made absolute.
 
         The judgment and decree dated 04.11.2001 passed by the learned Joint District Judge, Tangail in Other Class Appeal No. 32 of 1993, affirming the judgment and order dated 24.09.1993, passed by the learned Senior Assistant Judge, Mirzapur, Tangail, in Other Class Suit No. 50 of 1991, rejecting the plaint of the suit, is hereby set aside. 
 
         The trial Courts is directed to dispose of the suit on merit in accordance with law preferably within 1(one) year from the date of receipt of this judgment.
 
         Communicate the judgment and order.
 
         Send down the L. C. R. if any.
 
         Ed.